Gleason v. Woods Condo. Ass'n

JOHN D. GLEASON, Plaintiff, v. WOODS CONDOMINIUM ASSOCIATION, Defendant.

No. 17-12544

No. 17-12816

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 3, 2019

District Judge Robert H. Cleland

Magistrate Judge R. Steven Whalen

REPORT AND RECOMMENDATION

On August 2, 2017, Plaintiff John D. Gleason filed a pro se civil complaint alleging violations of the Fair Housing Act, 42 U.S.C. §§ 3601-3619, in Case No. 17-12544. On August 24, 2017, he filed a second complaint under the Fair Housing Act, in Case No. 17-12816. On December 11, 2017, the two cases were consolidated [Doc. #17], with Case No. 17-12544 being designated the lead case [Doc. #18].

Before the Court is Defendant Woods Condominium Association's Amended Motion for Summary Judgment [Doc. #37], which has been referred for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion be GRANTED.

I. FACTS

Mr. Gleason suffers from a condition that makes him extremely sensitive to noise. This case arises out of his 14+ year dispute with the Woods Condominium Association, where he lives, regarding the noise created by the Association's landscaping service (Case No. 17-12544), and an alleged fly infestation (Case No. 17-12816).

A. Noise

Plaintiff testified at a 2013 deposition in a Wayne County Circuit Court case that he has lived at the Woods Condominiums since 1987. Plaintiff's Deposition, Defendant's Motion [Doc. #37], Exhibit 1, at 6-7. He graduated from dental school in 1979, and worked for a short time as a dentist, a musician, and a computer programmer before becoming disabled. Id. 11-15. He began receiving Social Security Disability benefits in 1995. Id. 15. Plaintiff's medical conditions, including chronic fatigue syndrome, atrophic dystrophy, and joint problems, resulted in physical limitations in mobility. He estimated that he was bedridden about 22 hours per day. Id. 15-25. Plaintiff testified that he also has extreme sensitivity to light and sound. He keeps the television on low volume and relies on subtitles. Id. 27-28. He has noise-cancelling headphones in every room, and wears them even when he flushes the toilet or runs the dishwasher. Id. 28.¹

Plaintiff testified that he made his first complaint about noise from the landscaping equipment in April of 2004, but nothing changed. He contacted Defendant again in 2005, at which time they made an agreement that the leaf blowers would be run a half-speed and not blown right up against the condo unit, and that the landscapers would use a small gas mower instead of a big riding mower. Id. 34-35. In 2009, because he believed the Defendant was not compliant with their agreement, he quit paying his assessment. He hired a lawyer, and following negotiations they made some minor changes to the earlier agreement and waived the late fees on the assessment. Id. 36-38. However, Plaintiff was again not satisfied with the Defendant's compliance, and he then filed a complaint with the Michigan Department of Civil Rights ("MDCR"). This resulted in another agreementin August of 2010. Id. 39-40.

The 2010 MDCR settlement agreement is appended to Defendant's motion as Exhibit C. After delineating areas of the Woods Condominium Association needing accommodations, the agreement includes the following provisions:

(a) "Every reasonable effort" will be made to complete the landscaping procedure within the defined area within one and one-half hours.

(b) The lawn immediately bordering Plaintiff's unit will be cut with either a manual reel mower (which Plaintiff provided) or an electric mower (which the landscaping company purchased).

(c) No power equipment, except the weed whip and electric mower, will be used in the "green" area on the map. Within that area, any hedge or other trimming and yard clean-up will be done by manual means only.

(d) The sidewalk surrounding Plaintiff's unit will be swept clean by broom and/or electric mower. No leaf blowers will be used, and during winter months when snow is present, no leaf blowers shall be used on the sidewalk immediately surrounding Plaintiff's unit.

(e) The area within 75 feet of Plaintiff's unit will be cut with a riding mower at ½ speed. A leaf blower may be used along the west side of Building 11 so long as it is run at ½ speed.

(f) Leaf blowers on University Park Drive and the adjacent carport south of Plaintiff's unit will be run at ½ speed.

(g) The lawn/maintenance company will set the staging area for equipment at the west side of the open parking area south of Plaintiff's unit when staging there. "If vehicles already parked there do not make that feasible, they shall stage in other parkingareas of the complex, never in the east half of the lot south of Gleason's condo."

(h) Plaintiff will pay $10 per week or $40 per month to Defendant for a period of seven months per year. Doc. #37, Pg. ID 496-97.

In 2013, Plaintiff sued Defendant in the Wayne County Circuit Court, alleging that Defendant had breached the 2010 settlement agreement. (The Plaintiff's Wayne County complaint is appended to Defendant's motion as Exhibit D). The parties resolved the dispute under the term set forth in a Settlement Memorandum dated January 5, 2017, and appended to Defendant's motion as Exhibit E , Doc. #37, Pg. ID 511-512. The settlement agreement, which superseded the 2010 agreement, provided as follows:

¶ 3. In the area defined as "Red" in the 2010 agreement, Defendant "shall ensure that the mowers be operated at as close to 50% speed as possible, consistent with the ability for the mowers to operate. In no event can the mower be operated at a speed in excess of 70%. There are to be no leaf blowers in the Red area except that a leaf blower may be used along the west side of Building 11."

¶ 4. Defendant will pay Plaintiff the sum of $4,400.00. "Defendant Woods shall install tachometers on the Grasshopper and Bobcat machines to monitor the speed. Plaintiff shall pay the cost for the tachometers prior to installation."

¶ 5. The previous $10 per week assessment is eliminated.

¶ 8. Plaintiff's arrearages for dues is eliminated.

¶ 9. "The obligations for the area described as "Green" including the sidewalks in Exhibit A in the prior agreement shall remain unchanged."

¶ 10. "Defendant Woods shall not stage their equipment immediately adjacent to Plaintiff's unit."

Pursuant to the settlement, the Wayne County Circuit Court Judge Patricia Fesardentered a stipulated order of dismissal on January 22, 2015, dismissing the case with prejudice. See Defendant's Exhibit F, Doc. #37, Pg. ID 513-14,

Appended to Defendant's motion as Exhibit G is the affidavit of George Hensley, the owner of Dunn-Rite Land Services of Livonia. Doc. #37, Pg. ID 515-520. Mr. Hensley states that Dunn-Rite has performed landscaping at The Woods Condominiums since 1989, and for the past 10 or 15 years has done so "under strict guidelines in the field near John Gleason's condominium unit." Hensley Affidavit, ¶¶ 3-4. He states that "[o]ver the years, the landscaping guidelines have become more and more restrictive because, every time something is changed to appease Mr. Gleason, Mr. Gleason demands something more." Id. ¶ 7. Nevertheless, he states, "Dunn-Rite has done its best to abide by the guidelines provided by The Woods. Its employees are all aware that they cannot perform their job in a normal capacity near Mr. Gleason's condominium unit." Id. ¶ 8. He states that in the "red area" around Plaintiff's unit, they use only the electric mower, weed whipper, and hand tools, and in other nearby areas "we operate our equipment as close to 50% power as practical." He further states, "We do our best to operate the grasshopper at half power, but that is not always feasible. If conditions are wet, for example, we can't pick up leaves when operating the grasshopper at lower levels. We also know to keep the large powered equipment off the sidewalk, and we do our best to make sure that happens. Moreover, we don't park our trucks beside Mr. Gleason's unit. We park our trucks and trailers on the other side of the parking lot." Id. ¶ 9. Mr. Hensley states that he usually runs the 60" riding lawn mower, and does his best "to operate it at 50% speed and keep it in the area designated for its use. When outside of the restricted areas, I am able to run the equipment at full capacity." Id. ¶ 10.

Mr. Hensley states that "[f]ollowing the Association's guidelines is extremelyburdensome to Dunn-Rite. The guidelines cause Dunn-Rite to spend additional time performing landscaping, and the guidelines affect the quality of Dunn-Rite's work." Id. ¶ 12. He adds, "In order to comply with the landscaping restrictions, I estimate that Dunn-Rite spends at least an extra hour tending to the area near Mr. Gleason's condominium when compared to the amount of time it would take to do the same job with normal equipment and procedures. It takes most of the day to do the whole condominium complex." Id. ¶ 13.

Mr. Hensley states that when weather conditions are good, Dunn-Rite is usually able to get the lawn cut and trimmed in Plaintiff's area within 1.5 hours. "However, in some circumstances, such as when the grass is wet because of rain or sprinklers and cannot be cut, Dunn-Rite performs the work that it is able to do near Mr. Gleason's unit and then completes the work at a later time when it is practical." However, he says, "[i]t is not practical to require Dunn-Rite to complete all landscaping activities within a short, specified timeframe each week." Id. ¶¶ 14-15.

Mr. Hensley states that it is impractical to use a manual reel lawn mower at the complex. "In the past, Dunn-Rite attempted to use the reel mower over a 2-week period and found that it could not cut the grass and it took much more time to attempt cutting the grass. The grass is too thick and the mower could not cut it. Dunn-Rite will not use a manual reel mower again." Id. ¶ 16. He states that he uses an electric lawn mower...